Magige & 3 others v Chacha (Enviromental and Land Originating Summons 96 of 2018) [2026] KEELC 862 (KLR)
The bottom line
#Filing an appeal does not stop an eviction in Kenya — you must obtain and prove an actual stay of execution order, or the judgment holder can evict you.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents should be evicted from land parcel no LR No. Bugumbe/Mabera/211
- 2.The question of costs of the application
Key legal issues
#Whether eviction of the respondents could issue absent a stay of execution of the decree
Yes. No stay of execution had been granted by this court or the Court of Appeal, and an appeal does not operate as an automatic stay, so the applicant was entitled to enjoy the fruits of her judgment.
The decree dated 27th August 2025 directed the respondents to vacate within 30 days and they had not done so. Although they claimed to have filed a stay application in the Court of Appeal, they did not annex it, and the annexed directions could relate to any application. Under Section 107(1) of the Evidence Act they had to prove the existence of the application and the grant of a stay; they did not. The court therefore allowed the eviction application.
Entitlement of a successful party to the fruits of judgment
A successful party is ordinarily entitled to the fruits of the judgment, and the court should not be obsessed with protecting an intending appellant at the expense of the successful party.
The court adopted the decision in Macharia t/a Macharia & Co Advocates v East African Standard, which holds that the ordinary principle is that a successful party is entitled to the fruits of the judgment, and that courts handling stay applications must fix their sight on the overriding objective of doing justice and preventing abuse of court process.
Legal principles established
#- An appeal does not operate as an automatic stay of execution; a decree stands executable unless a stay is ordered
- A party asserting that a stay application exists and a stay has been granted bears the burden of proving those facts
Court orders
#- 1.An order of eviction issued against the Plaintiffs/Respondents, their servants, agents or anyone acting under them, from LR No. Bugumbe/Mabera/211, to be carried out by M/S Ekemwanya Auctioneers with assistance of the OCS Isibania Police Station providing security and assistance in execution
- 2.The eviction to be carried out under strict adherence and compliance with Section 152 C, D, E & G of the Land Act, Cap 280 and the Land Act Regulations (2017)
- 3.The Plaintiffs/Respondents to pay the Auctioneer's charges and all subsequent or incidental costs incurred during the eviction exercise, together with costs incidental to the application
- 4.The costs of the application to be borne by the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null (originating suit decided by this court; respondents have filed an appeal in the Court of Appeal, Kisumu, but this application is not an appeal)
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act, Cap 21; Rule 9 of the Auctioneers Rules 2009; Sections 152C, D & G of the Land Act, Cap 280 and the Land Act Regulations (2017); Articles 10, 21, 22, 28, 40, 43, 47 & 50 of the Constitution of Kenya, 2010
Relief refused
#Stay of execution pending appeal sought by respondents
Respondents failed to prove the existence of a stay application or any order of stay of execution by this court or the Court of Appeal
Costs
The costs of this application to be borne by the Respondents; the Plaintiffs/Respondents to also pay the Auctioneer's charges and all subsequent or incidental costs incurred during the eviction exercise
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There be and is hereby issued an order of eviction against the Plaintifis/ Respondent, their servants, agents or anyone acting under them or under their authority, in and from the occupation of all that parcel of land known as LR. No. Bugumbe/Mabera/211
The plaintifis/Respondents to pay the Auctioneer's charges and all the subsequent or incidental costs incurred during the eviction exercise, together with the cost incidental to this Application.
The costs of this application be borne by the Respondents.
This Court does not act on guesswork or conjecture.
Thus, where the court has not been furnished with a copy of an order staying execution or at the very least, an application received by the court of appeal seeking the said stay of execution, it has no choice but to allow the applicant to enjoy the fruits of her successful litigation.
Issues in the judgment
#The judgment describes the respondents as 'Appellants/Respondent' and 'Plaintifis/Respondent' inconsistently, reflecting the pending appeal; party roles are not fully defined and the respondents' names and the suit number are not stated
Typographical errors throughout ('sufier', 'dificult', 'fiitting') suggesting OCR or drafting errors
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magige & 3 others v Chacha (Enviromental and Land Originating Summons 96 of 2018) [2026] KEELC 862 (KLR)", Case Analysis (2026). Not stated in judgment (notice of motion dated 8th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/862/eng@2026-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.